The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36161 of 2021 Sanjay Kumar Barik …. Petitioner Mr. Biswabihari Mohanty, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Saswat Das, AGA W.P.(C) No.35100 of 2021 Sri Janardan Nayak …. Petitioner Mr. Biswabihari Mohanty, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Saswat Das, AGA W.P.(C) No.35102 of 2021 Biswajit Tarini …. Petitioner
Legal Reasoning
Mr. Biswabihari Mohanty, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Saswat Das, AGA W.P.(C) No.35106 of 2021 Bijay Kumar Muduli …. Petitioner Mr. Biswabihari Mohanty, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Saswat Das, AGA // 2 // CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 17.04.2023 06. 1. These matters are taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned counsel for the State-Opposite Parties in all the cases. Perused the pleadings of the respective parties as well as the materials placed before this Court in course of hearing of the writ petitions. 3. Since the writ petitions indicated hereinabove involve a common question of law, all those matters were taken up together for hearing. Further, since the factual background involved in each of the writ application is almost identical the facts involved in W.P.(C) No.36161 of 2021, i.e., in the case of Petitioner-Sanjay Kumar Barik, is being taken up by this Court for analysis of the factual background of the present case and, accordingly, the same is treated as the lead case in the present matters. All the above noted matters are being disposed of by the // 3 // following common order. 4. W.P.(C) No.36161 has been filed by the Petitioner-Sanjay Kumar Barik with a prayer to quash the Letter No.40819/Board dated 12.11.2021 under Annexure-9 thereby calling for nomination roll excluding his name and the consequential actions taken thereon and further to direct the Opposite Parties to consider his case for promotion along with the Opposite Parties to the post of Inspector of Police (Armed) for the year 2022. 5. It is submitted by the learned counsel for the Petitioner that pursuant to an advertisement made in the year 2011, the Petitioner was selected by the Odisha Staff Selection Commission which was notified vide Notification dated 23.03.2013 as against S.E.B.C. Category. He further contended that in the said select list, the Petitioner was placed at Serial No.20 on comparative merit. He further contended that such selection was made for total 87 nos. of S.E.B.C. Category posts which were kept reserved in compliance to the interim order passed by the OAT in O.A. No.3787(C)/2012. He further contended that the OSSC vide Notification dated 2.4.2013 published a composite and revised merit list of all 555 selected // 4 // candidates whose names were recommended by Notifications dated 06.09.2012 as well as by Notification dated 23.3.2013 pursuant to an Advertisement for Combined Police Service Examination, 2011. 6. Learned counsel for the Petitioner further contended that in the said composite revised select list, the name of the Petitioner finds place at Serial No.215 above one Niranjan Rath (Opposite Party No.4), who was placed at Serial No.217, i.e., below the Petitioner. Thereafter, the Petitioner and his batchmates including Opposite Party No.4 were sent for undergoing Dy. Subedar Course of Training at BPSPA which was duly completed by the Petitioner. He further contended that the post of Dy. Subedar has been re-nomenclature as Sub- Inspector of Police (Armed) and it will be governed by a recruitment rule/order framed under Section-2 of the Police Act. 7. The Rule that was framed under Section 2 of the Police Act is known as Orissa Police Service (M.R.C.S. of Sub Inspector of Police) (Armed) Order 2012. The aforesaid rule of the year, 2012 was brought into force w.e.f. 18.10.2022 and, accordingly, three posts were amalgamated, i.e., Dy. Subedar of // 5 // Police, Sergeant of Police and Drill Sub-Inspectors irrespective of their continuance previously under the Battalions, District Police or under the State which were earlier covered under different Rules. 8. Learned counsel for the Petitioner further contended that Rule-3 of the aforesaid rules vide Order, 2012 was challenged before the Odisha Administrative Tribunal by filing a O.A. No.803(C)/2013, wherein the OAT, as an interim measure, vide order dated 18.03.2013 directed that the operation of the Rule-3 of the aforesaid rules vide Order, 2012 be kept in hold until further orders. While this was so, the above noted O.A. No.803(C)/2013 was transferred to this Court after abolition of the Odisha Administrative Tribunal. However, interim order passed on 18.03.2013 was continuing and, accordingly, the said O.A. was reregistered as WPC(OAC) No.803 of 2013 by this Court. Finally, the aforesaid WPC(OAC) No.803 of 2013 was disposed of vide order dated 17.03.2021 giving liberty to the Petitioner to raise the grounds of challenge afresh and accordingly W.P.(C) No.10271 of 2021 came into existence. 9. It is further contended by the learned counsel for the // 6 // Petitioner that although the aforesaid rules vide Police Order, 2012 was in force, however, the same was not given effect to in the case of the Petitioner and his batchments, who were selected pursuant to the advertisement of the year 2011 in view of the interim order passed by the Tribunal as has been referred to hereinabove. While this was the position, the A.I.G. of Police Personnel by Notification dated 27.09.2016 published a tentative/provisional gradation list only for the post of Dy. Subedars for the year 2016 reflecting the position of incumbents as on 31.08.2016. 10. It was further contended that said list contains only the name of the Dy. Subedar and not the names of Sergeant of Police or Drill Sub-Inspectors. Such publication of gradation list excluding other two categories, clearly reveals that the Order-3 of the Police Order, 2012 has not been given effect to by the Opposite Parties. In the tentative gradation list, the name of the Opposite Party No.4, namely, Niranjan Rath finds place at 285 whereas the name of the Petitioner, who was then continuing as a Sergeant of Police on being promoted to the post of Sergeant, was not reflected in the said gradation list. Accordingly, learned // 7 // counsel for the Petitioner submitted that the authorities have adopted a wrong method in fixing the inter se seniority, so far as the present Petitioner is concerned. 11. Finally, it is submitted by the learned counsel for the Petitioner that the A.I.G. of Police (Personnel), Odisha, Cuttack vide Notification dated 13.05.2021 published another tentative gradation list of Sub-Inspector of Police (Armed) for the year 2021 reflecting the position of incumbents as on 31.03.2021. The said list consisting of 668 candidates including the names of Dy. Subedar of Police, Sergeants and Drill Sub-Inspectors. In that list, the name of the Petitioner finds place at Serial No.246 whereas the Opposite Party No.4 has been placed at Serial No.160 that is above the Petitioner. 12. Learned counsel for the Petitioner in course of his argument cited several decisions by referring to the said gradation list to demonstrate before this Court as to how erroneously such a gradation list has been prepared that too by ignoring the rules governing the field. Learned counsel for the Petitioner also contended that although a representation was filed raising objection to the tentative/provisional gradation list // 8 // published by the department, however, the same has not been considered in its proper perspective and finally the authorities have prepared and published an erroneous final gradation list, which has caused serious prejudice to the Petitioner. 13. Learned counsel for the Petitioner in course of his argument further submitted that the Petitioner has undergone the required training for promotion to the next higher post. He further contended that with regard to fixation of seniority, the G.A. Department, Government of Odisha came out with a Notification dated 4th May, 2018. So far the inter se seniority in the gradation list is concerned, it has been provided in the said Notification that seniority of all the candidates who have been re-allotted/newly allotted to different cadres shall be fixed in accordance with their position in the Revised Merit List published by the OPSC for Odisha Civil Service Examination- 2011. 14. Learned counsel for the Petitioner referring to a letter dated 06.12.2018 issued by the A.I.G. of Police (Personnel), Odisha, Cuttack under Annexure-10 Series submitted before this Court that six persons named therein have already undergone // 9 // Dy. Subedar/Sergeant Course training and they were working as Dy. Subedar/Sergeant. Further, in the very same letter, it has been stated that the past service of the above named Sub- Inspectors/Sergeants rendered as Deputy Subedar/Sergeant from the date of their joining as Dy. Subedar/Sergeant in training centre and working in Battalions/Dist. till their further joining in training centre as Sub-Inspector/Sergeant as noted against each are hereby allowed as per the F.D. Office Memorandum No.31504/F dated 16.06.1980. 15. Mr. Mohanty, learned counsel appearing for the Petitioner referred to the order passed in the case of one Biren Kumar Behera v. State of Odisha and others in W.P.(C) No.24208 of 2020 which was disposed of on 11.11.2020 submitted that the said writ petition was disposed of by directing the authority to consider the representation of the Petitioner keeping in view the order Annexure-11 passed by the Promotion Adalat. Since the aforesaid order was not complied with by the Opposite Parties, a contempt petition bearing CONTC No.6797 of 2021 had been filed before this Court, which was disposed of vide order dated 10.12.2021. Thereafter, said Biren Kumar Behera has been given // 10 // his due seniority by the authorities. 16. Learned Additional Government Advocate appearing for the State-Opposite Parties referring to the counter affidavit, on the other hand, submitted that the Petitioner is claiming relief relying upon the decision of the A.I.G. of Police (Personnel), Odisha, Cuttack vide letter dated 06.12.2018. He further contended that the Petitioner’s claim of parity with one Biren Kumar Behera, whose case has been considered pursuant to direction of this Court, has been considered and the Government was pleased to allow promotion to the above named Biren Kumar Behera retrospectively from the date his juniors have been promoted vide order dated 16th April, 2021. Pursuant to the aforesaid decision of the Government, the I.G. of Police (Personnel), Odisha, Cuttack vide order 14.09.2022 has allowed promotion to said Biren Kumar Behera in the rank of Inspector of Police (Armed) notionally with retrospective effect and his seniority is fixed below the Inspector of Police (Armed) Dillip Kumar Behera (SC). 17. In such view of the matter, learned Additional Government Advocate submitted that the Petitioner should have // 11 // approached the departmental authority first before approaching this Court by filing a detailed application. He also submitted that in the event the Petitioner approaches the departmental authority, i.e., Opposite Party No.2-Director General & Inspector General of Police, Odisha, Cuttack, then the Opposite Party No.2 be directed to consider the case of the Petitioner in the light of the letter dated 06.12.2018. 18. Having heard the learned counsels for the parties, this Court is of the considered view that the only dispute that requires adjudication in the present writ petitions is the inter se seniority of the candidates taking into consideration their initial date of appointment and their position in the gradation list. Further, whether the authorities while considering the inter se seniority are required to take into consideration the new rule that has come into force. Since the Petitioners’ claim that they stand in similar footing with one Biren Kumar Behera, who has been extended the benefit by upgradating his post and by restoring his seniority as Deputy Subedar, the authorities while considering the case of the Petitioners shall also take into the aforesaid fact and in the event they come to a conclusion that the Petitioners // 12 // stand on similar footing with said Biren Kumar Behera, then similar benefits be also extended in favour of the Petitioners by suitably modifying the gradation list and restoring the seniority of the Petitioners. 19. Considering the submissions made by the learned counsels for the respective parties and upon a careful consideration of the background facts as well as keeping in view the case of one Biran Kumar Behera, the Petitioner in W.P.(C) No.24208 of 2020, this Court deems it proper to dispose of the writ petition by directing the Opposite Party No.2-Director General & Inspector General of Police, Odisha, Cuttack to consider the grievance of the Petitioner by taking into consideration the order dated 06.12.2018 as well as taking into consideration the case of a similarly situated employee, namely, Biren Kumar Behera, who has been given promotion in the meantime pursuant to the order passed by this Court, and pass necessary orders in accordance with the rules within a period of four weeks from the date of communication of a certified copy of this order. The decision so taken be communicated to the Petitioner within a week thereafter. Further, it is directed that in the event the // 13 // authorities come to a conclusion that the case of the Petitioners stand on similar footing with that of Biren Kumar Behera, then the case of the Petitioners shall also be recommended for promotion to the DPC which is likely to be convened in the near future or by convening a review DPC and in such eventuality, the DPC/Review DPC shall consider the cases of the Petitioners in the above noted batch of writ petitions for promotion in accordance with law. 20. With the aforesaid observations and directions, the writ petitions are disposed of. ( A.K. Mohapatra) Judge Debasis